Contracts/Definitions
Promise
A promise is the declaration by any person of his intention to do, or to forbear from anything at the request, or for the use, of another. A proposal when accepted becomes a promise.
Agreement
Agreement in the law of contracts is the expression by two or more persons of a common intention to affect their legal relations; it consists in their being of the same mind and intention concerning the matter agreed on.[1]
Another definition of Agreement is "a coming together of parties in opinion or determination; the union of two or more minds in a thing done or to be done; a mutual assent to do a thing."[2]
See also Contracts/Offer and acceptance.
The term "agreement" is sometimes used as synonymous with "contract."[3]
Obligation
. The duty imposed by law on the parties to a contract to perform their undertaking cGnstitutes the obligation of the contract. 17 The existence of such an obligation is essential to the existence of a contract.11 The questions of . what acts impair the obligation of contraets/ 9 and of what are contracts within the scope of the constitutional proteetioo,20- are elsewhere treated
Compact
. "Compact" and "contract" are used as convertible terms.21
Express Contracts
. An express eontract is one where the intention of the parties and the terms of the agreement are declared or expressed by the parties, in writing or orally; at the time it is entered into.22 It is an express contract, although some of its terms are dependent on the happening of a future event,23 'or although consummated by an agent.2' Express contracts clasai1Led. Express contracts are properly divided into two el888es, contracts under Se&l or specialties, and contracts in parol.t;
Implied Contracts
Classes and Distinctions
Implied contracts are frequently spoken of as being divisible into two classes :211 (1) Contracts implied in fact ;21 and (2) contracts implied in law.28 This division has been subjected to some eritieism,28 ood perhaps justly so, because of the ·absence from so called contracts implied in. law of the elements of true contracts.30 A more accurate ' designation of the so called contracts implied in law, and one which is frequently, employed, is quasi or constructive eontracts.31 The term "implied contracts," however, as it is ordinarily employed, is broad enough to include both eontraets implied in fact and quasi or constructive eontraets.u
Distinctions
A contract implied in faet is a true eontraet, the agreement of the parties being inferred from the circumstances, while a eontract implied in law is but a duty imposed by law and treated as a eontract for the purposes of a remedy only.�a In the ease of contracts implied in fact, tMre must be an assent of the parties, as in express eontraets,34 while .in the case of contracts implied in law or more properly quasi or eonstructive eontraets the obligation arises, not from consent, but from the law or natural equity.85 In the ease of contracts implied in fact, the contract defines the duty, while in the ease of eonstructive eont'racts, the duty defines the eontract.86
Contracts Implied in Fact
ln General
A contract implied in fact, or an implied contract in the proper sense, arises where the intention of the parties is not expressed, but an agreement in fact, creating an obligation, is implied or presumed from their acts,S7 or, as it has been otherwise stated, where there are circumstances which, according to the ordinary course of dealing and the , common understanding of men, show a mutual intent to contract.38 It follows, that thtt only distinction between this species of contract and expresa contracts rests in the mode of proof ;31 the nature of the understanding is the same, and both express contracts and contracts implied in fact are founded on the mutual agreement of the parties.40 The one elass is proved by direct, the other by indirect, evi-, dence ;n in other words, the one must be proved by an actual agreement, while in the case of the other it will be implied that the party did make such an agreement as, under the circumstances disclosed, he ought in fairness to have made.'2 The implication, of course, must be a reasonable deduction from all the circumstances and relations of the parties,'3 although it need not be evidenced by anv precise words," and may result from random ata ment. and uncertain langqage. A contract will not be implied where it would result in the tration of a wrong," or it would be inequitable to do so,.., or where the parties eannot legally make ·an expreae contract ;" ao a promise to do an act contrary to duty or to Jaw is never implied.••
Adoption of e:dstiDc contract. Where a person who is a stranger to a contract deliberately enters into relations with one of the parties which are eonsistent only with an adoption of such contract, and so ads as to lead such party to believe that he has made the contract his own, he wiJJ not be permitted afterward to repudiate it.60 Questions of what facta will establish an implied contract, being identical with the questions of what faets are sufficient to show an offer and acceptance, are treated in connection with the discussion of offer,51 acceptance,51 and intent to affect legal re lationsu generally.
Effect of Express Contract
There can be no implied contract where there is an express contract between the parties in reference to the same subject matter.M The reason of the rule i s that, since parties a re bound b y their agreement, there is no ground for implying a promise where there is an express contract,116 and it can make no difference whether the contract is made by the parties ·themselves or by others for them.154 This mle only applies, however, where the express and th'e asserted implied contract relate to the same subject mstter, and where the provisions of \be ewress contract would supersede th ose of the other.6 It does not apply where the implied agreement is based on the subsequent conduct of the parties not covrred by the express contract." Further, where the express contract is rescinded, resort may be bad to an implied eontraet.5e So if the contract has been completely executed, plaintiff may recover as on an implied contract, under an indebitatus assumpsit, the price of his services, but the contract must regulate thll amount of his recovery.80 Further, a eontract may be implied when the express agreement is unenforC(·able for certain reasons.61
Implied in Law or Quasi or Constructive Contracts
Contracts implied in law, or more properly quasi or constructive contracts, are a ela!Jf! of obligatjpns which are imposed or created by law without regard to the assent of the party bound, on the ground that they are dictated by reason and JUstice, and which are allowed to be enforced by an action ex eontractu.62 They rest solely on a legal fl.etion,81 and are not contract obligations at all in ' the true sense, for there is no agreement ; but they are clothed with the semblance of contract for the purpose of the remedy /1' and the obligation arises not from consent, , as in the ease of true contracts, but from the law or natural equity.65 So, when the party to be bouna is under a legal obligation to perform the duty from which his promise is in· 1 ferred, th<> law may infer a promise even as against his intention.66 Among the instances of quasi or constructive contracts may be mentioned eases in which one person has received money which another person ought to have received, and which the lat ter is allowed to recover from the former in an acti&n of assumpsit for money llad and re ceived, or money received to the use of plaintil! ;r. eases in which one person has been eompt>lled to pay money which another ought to have paid, and which a is allowed to recover from the latter in an action o( assumpsit for money paid to his use;18 · eases of account stated, from which the law implies a J!romise which will support an action of aasumpsit ; judgments on which an action of assumpsit or debt may be maintained, according to the circumstances, because of a promise to pay implied by law ; 10 eases in· which an obligation to pay money is imposed by a statute ;11 cases where a person by wrongfully appropriating property to his own use becomes liable to yay the owners the rea nable value thereof ;12 · eases in which a person fails to deliver specific property and becomes liablt" for the money value thereof ;18 eases where one party wrongfully compels anoth to render him '\""aluable services, and a promise to pay their value i3 implied ;" cases .where one man has obtained money from another by oppression, extortion, or deceit, or by the commission of a trespass ;16 eases where necessaries have been furnished to a wife wrongfully abandoned by 'her husband, although he has given notice that he will not be respousibl4;! ;7' and cases in which the husband is permitted to recoer the wife 's funeral expenses from her estate. 11 In order that 1 a contract may be implied in law from the wrong of a party, it must have been committed with the intention of benefiting his own estate.7s
Executed and Executory Contracts.
An executed contract is one where nothing remains to be· done py either party.19 An executory contract is one in which a party binds himself to do or not to do a particular thing in the future.80 An executory contract conveys a chose in ' action ; an executed contract, a chose in possession.st A con. tract may be partly executed and partly executory, 82 and may be executory as to one py and executed as to the other.83 While it has been said that an executed contract is not properly a contract at all, but that the contractual obligation having been performed, the parties are no longer bound,U this is not strictly accurate, for the reason that, in cases wherein the contract operates as a grant, there is 'an implied contract on the part of the grantor not to reassert the right which he has granted.86
Formal Execution
The word "executed " is also used with reference to contracts in the sense of "made, " a meaning which is, of course, entirely distinct from that already given.80 .
Simple or Parol Contracts
Contracts are divisible into two classes, simple contracts, and contractli y specialty.87 Simple contracts are contracts which are not under seal.88 They may be either written or oral,88 and the term is synonymous with the term "parol contracts, " 110 which is also used to distinguish contracts made verbally or not under senl.81 Properly speaking there is no distinct claila of contracts merely in writing."
Written and Oral Oontracts
A. written contract is one which, in all its terms, is in writing." A contract which is not entirely in writing is regarded as an oral or verbal contract." Further, in order that. a contract may be deemed to be in writing, it must be in legible charaeters." The word "contract " is broad enough to include contracts both in writing and bt parol."
Special Contracta
A special contract is one with peculiar provisions or stipulations not found in the ordinary contract relating to th< same subject matter. These provisions are sueh as. if omitted from the ordinary contract, the law will never supply.88 A special contract may rest in parol," and the term does not require a eontraet by specialty.1 _ .
Conditional Contracts
A conditiona1 contract is an executory contract, the performance of which depends' on a condition. It is not simply an executory contract, since the latter may be an absolute agreement to do, or not to do, some thing, but it is a contract whose very existence and performance depends on a contingency and condition.2
Gratuitous Contracts
A gratuitous contract is defined to be one the object of which is the benefit of the person with whom it is made, without any profit received or promised as a consideration for it, as, for example, a gift.3
Bilateral and Unilateral Contracts
bilateral contract is one in which there are reciprocal promises, so that there is something on both sides to be done or forborne,• while a unilateral contract is one in which there is a promise on one side only A the consideration on the other side being executed. , " Unilateral, " however, is frequently employed by the courts to express absence of mutuality. 6
Commutative Contracts
"Commutative contract" is a term used in the civil law to designate a contract in which each of the contracting parties gives and receives an equivalent.1 The contnct of sale is of thls kind : the seller gives the thing sold, and receives the price which is the equivalent ; the buyer gives the price, and receives the thing sold, which is the equivalent.•
- ↑ U. S.-- U. S. v. Richards, 149 Fed. 443, 450.
Ky.-- Tucker v. Sheeran, 155 Ky. 670, 672, 160 SW 176; Dixie F. Ins. Co. v. Wallace, 153 Ky. 677, 679, 156 SW 140, 142, AnnCas1915C 409 [cit Cyc].
Mich.-- Hudson v. Columbian Transfer Co., 137 Mich. 255, 257, 100 NW 402, 109 AmSR 679 (cit Cyc).
Nebr.-- McGavock v. Morton, 57 Nebr. 385, 77 NW 785.
N. Y.-- Bruce v. Pearson, 3 Johns. 534.
Oh-- Columbus, etc., R. Co. v. Gaffney, 65 Oh. St. 104, 117, 61 NE 152. - ↑ Carter v. Prairie Oil, etc., Co., (Okl.) 160 P 319, 322.
- ↑ Douglass v. W. L. Williams Art Co., 143 Ga. 846, 85 SE 993; Michael v. Kennedy, 166 Mo. A. 462, 466, 148 SW 983 ("We are unable to distinguish the difference between a contract and an agreement"). But see Tucker v. Sheeran, 155 Ky. 670, 160 SW 176 (holding that an agreement does not necessarily affect the legal relations of the parties so as to amount to a contract, It being necessary for that purpose that it produce a legal, binding result on their mutual relations).
